Labor: D.C. Circuit Strikes Down NLRB Poster Rule

On May 7, the U.S. Court of Appeals for the D.C. Circuit struck down a National Labor Relations Board (NLRB) rule that required more than 6 million employers to post certain types of notices at work informing employees of their rights under the National Labor Relations Act.

While notifying employees of their statutory rights may not sound all that bad at first blush, the NLRB’s rule would have undercut employers’ free speech rights to “engage in noncoercive speech about unionization.” Further, the NLRB threatened to make the failure to comply an unfair labor practice and evidence of an employer’s “antiunion animus” for claims before the NLRB. It also purported to extend the time employees have to file those claims.

Several groups challenged the poster rule in court, arguing that the NLRB lacked the authority to promulgate such a rule and, moreover, that the poster rule violates the First Amendment and the Labor Management Relations Act.

Before proceeding to the merits of the case, the D.C. Circuit Court noted that, in light of its decision in Canning v. NLRB earlier this year striking down illegal recess appointments to the board, it first had to determine if the NLRB had a lawful quorum in place at the time it issued the poster rule. While the court found that the board did have a quorum of constitutionally appointed members at the time it promulgated the poster rule, it is even clearer (if it was ever in doubt) that the entire D.C. Circuit will follow the Canning decision in every case involving the NLRB unless the Supreme Court instructs it not to do so. This further deflates claims that Canning is just “one case, one company, one court.”

On the merits of the poster dispute, the relevant statutory provision on the merits is Section 8(c) of the Labor Management Relations Act, which states:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

The D.C. Circuit noted that Section 8(c) “precludes the Board from finding noncoercive employer speech to be an unfair labor practice” (or evidence thereof). In Linn v. United Plant Guard Workers of America, Local 114, the Supreme Court stated that Section 8(c) shows “congressional intent to encourage free debate on issues dividing labor and management.” It protects an employer’s right to free speech as well as “allowing employers to present an alternative view and information that a union would not present.”

Yet the NLRB claimed that its posters are the board’s speech, not employer speech. The D.C. Circuit found this claim unpersuasive and irrelevant, because the “‘dissemination’ of messages others have created is entitled to the same level of protection as the ‘creation’ of messages.… [The] right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”

For example, in Wooley v. Mayard,the Supreme Court held that New Hampshire could not force citizens to “display the State motto ‘Live Free or Die’ on their automobile license plates.” Likewise, in West Virginia State Board of Education v. Barnette, the Supreme Court ruled that public schools could not force students to salute the flag or recite the pledge of allegiance. Thus, the NLRB’s mandate that employers promote pro-union speech cannot evade constitutional free-speech protections or Section 8(c) by claiming it is the NLRB’s speech. And Congress determined through Section 8(c) that notices such as what the NLRB attempted to require are not necessary to further any governmental interest.

The National Federation of Independent Business (one of the groups challenging this rule), praised the D.C. Circuit decision, pointing out that the NLRB has “consistently failed to act as a neutral arbiter…and it overstepped its authority by compelling [employers] to post a pro-union notice.”

As Heritage scholar James Sherk has pointed out, in the past few years the NLRB has consistently worked to “make life easier for union organizers at the expense of individual workers’ rights.” Thus, this decision is certainly a victory for champions of free speech and free enterprise.

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Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read her research.

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